U.S. Citizenship and Immigration Services (“USCIS”) recently announced that as of December 21, 2009, it had received a sufficient number of H-1B petitions to reach the Congressionally-mandated cap of 65,000 new H-1B visas for fiscal year 2010 (“FY 2010”) which runs from October 1, 2009 to September 30, 2010. Indeed, USCIS has advised that December 21, 2009 was the “final receipt date” for new H-1B specialty occupation petitions seeking an employment start date in FY 2010. As such, USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 which arrive after December 21.
USCIS has further advised that it will apply a computer-generated random selection process (“lottery”) to all petitions that are subject to the cap and received on December 21, 2009. USCIS will use this lottery system to select the number of petitions remaining in the cap. Those not selected in the lottery will be rejected and returned to the petitioner with the appropriate filing fees.
Based on USCIS’ recent announcement, we have advised our clients to calendar March 1, 2010 as an important date to make sure they have apprised us of all potential H-1B candidates who will be subject to next year’s cap so that we may timely prepare and file those H-1B petitions on the first day of eligibility for the FY 2011 cap, which is April 1, 2010, with an effective date of October 1, 2010.
It is important to note that H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. employer to another) are not subject to the annual cap and, therefore, will continue to be regularly accepted by USCIS. Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible colleges, universities and other qualifying non-profit research facilities may also be excluded from the numerical H-1B visa cap.
If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.